SkyFex Terms of Service
IMPORTANT - READ CAREFULLY: USE OF THE SKYFEX WEBSITE, SKYFEX SERVICES AND ASSOCIATED SOFTWARE (THE 'SERVICES') IS CONDITIONED UPON YOUR COMPLIANCE AND ACCEPTANCE OF THESE TERMS. BY SUBMITTING SKYFEX SERVICES ONLINE REGISTRATION FORM OR BY UTILIZING THE SKYFEX SERVICES YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. THE SKYFEX SERVICES ARE NOT AVAILABLE TO PERSONS UNDER 13 YEARS OF AGE.
This is a legal agreement ('Agreement') between a User and Tomsk Inc. (doing business as 'SkyFex'), for use of the SkyFex services, which may include the SkyFex Remote Desktop service, and/or web services provided by Tomsk Inc. ('Services') through skyfex.com web site. 'User' refers to an individual or a company who uses SkyFex for getting online assistance (Client) or to provide assistance (registered as a SkyFex Expert). Any software associated with the Services is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
1. SERVICES. SkyFex will provide the Services in accordance with this Agreement. SkyFex may at its sole discretion modify the features of the Services from time to time without prior notice.
2. RESPONSIBILITY FOR INFORMATION ACCURACY AND CONTENT. While registering a SkyFex Expert account, User submits valid postal address information and a valid e-mail address. User agrees to be solely responsible for the content of all visual, written or audible communications User sends. This applies to the content uploaded and otherwise incorporated by User to customize SkyFex visual appearance. User further agrees to not use the Services and SkyFex website to transfer or upload any data that is harassing, libelous, threatening, or obscene, or data that would violate the intellectual property rights of any party or data that is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation. Although SkyFex is not responsible for any such communications, SkyFex may stop, block, ban or delete any such communications of which SkyFex becomes aware, at any time without notice to User. User must not share his SkyFex Expert account and password with anybody else; otherwise, account may be suspended.
3. CHARGES. Charges apply to SkyFex Pro users only. SkyFex Free users use SkyFex service free of charge, with a possibility to buy optional license items. User agrees that if User has subscribed to SkyFex Pro and provided his or her own credit card (or another payment method) details then Tomsk Inc. will charge User for all amounts due and owing to the Services, including Service fees, set up fees, subscription fees, or any other fee or charge (when applicable) associated with User's use of the Services. SkyFex may change price and service fees at any time without prior notice. New price will take effect for the next billing period for User. User agrees that in case SkyFex is unable to collect the fees owed to SkyFex for the Services, SkyFex can temporary block User's account or turn a Pro account to Free.
4. COMMERCIAL USE. It is allowed to use SkyFex Pro for personal, small business and corporate use. SkyFex Free is limited to non-commercial use and cannot be used for deriving any kind of profit out of its use, notwithstanding the desired and the obtained results thereof. It is not allowed to use SkyFex in any way other than assistance sessions where User is an active participant, and as permitted under the terms and conditions of this Agreement. User may not resell, distribute, make any commercial use of, or use to operate a Website or otherwise generate income from the Services without written permission from SkyFex.
5. PROPRIETARY RIGHTS. SkyFex and/or its suppliers, as applicable, retain ownership of all proprietary rights of the Services and of all trade names, trademarks and service marks associated or displayed with the Services. User must not remove, deface or obscure any of SkyFex's or its suppliers' copyright or trademark notices and/or legends or other proprietary notices on, incorporated therein, or associated with the Services, if not explicitly permitted by SkyFex. User must not reverse engineer, reverse compile or otherwise reduce to human readable form any part of the Services or its components.
6. TERMINATION. User may terminate this Agreement by providing written notice to SkyFex via e-mail to Such termination will be effective on the later of the following: (a) the last day of the term (if the Agreement has a fixed term), or (b) thirty (30) days after SkyFex has received User's written termination notice. If User has failed to comply with any provision of this Agreement, SkyFex may terminate this Agreement immediately without notice. Sections 2 through 11, inclusive, survive any termination of this Agreement. Upon any termination of this Agreement, User must cease any further use of the Services and destroy any copies of associated software within User's possession and control. For SkyFex Free users, once User's expert account remains inactive for a long period of time (6 months and more), SkyFex reserves the right to terminate User's account and remove all the information associated with that User from SkyFex system.
7. EXPORT RESTRICTIONS. User acknowledges that the Services or portion thereof may be subject to the export control laws of the United States. User will not export, re-export, divert, transfer or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
8. INJUNCTIVE RELIEF. User acknowledges that any use of the Services contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to SkyFex, its affiliates, suppliers and any other party authorized by SkyFex to resell, distribute, or promote the Services ('Resellers'), and under such circumstances SkyFex, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
9. NO WARRANTIES. USER UNDERSTANDS AND AGREES THAT THE SERVICES ARE PROVIDED 'AS IS' AND SKYFEX, ITS AFFILIATES, SUPPLIERS AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SKYFEX, ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES, REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES, REGARDING ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES OR THAT THE SERVICES WILL MEET ANY USER'S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICES IS AT USER'S SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT USER'S OWN DISCRETION AND RISK. USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THE USE OF THE SERVICES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES REMAINS WITH USER.
User agrees to indemnify, defend and hold harmless SkyFex, its affiliates, officers, directors, employees, consultants, agents, suppliers and resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees) arising from User's use of the Services, User's violation of this Agreement or the infringement or violation by User or any other user of User's account, of any intellectual property or other right of any person or entity. Without limiting the foregoing, the Services are not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. Without limiting the generality of the foregoing, SkyFex, its affiliates, suppliers and resellers specifically disclaim any express or implied warranty of fitness for such purposes.
10. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SKYFEX OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF SKYFEX, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, SKYFEX'S, ITS AFFILIATES', SUPPLIERS' AND RESELLERS' MAXIMUM CUMULATIVE LIABILITY AND USER'S EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY USER FOR THE SERVICES (IF ANY) IN THE PREVIOUS 12 MONTHS. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to User.
11.1 Choice of Law and Court. This Agreement shall be governed by and construed under the laws of the State of California, U.S.A., as applied to agreements entered into and to be performed in California by California residents. The parties consent to the exclusive jurisdiction and venue of the courts located in and serving Santa Clara County, California.
11.2 Waiver and Severability. Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
11.3 General Provisions. This Agreement embodies the entire understanding and agreement between the parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the parties respecting such subject matter. SkyFex may change the terms of this Agreement at any time by posting modified terms on its website. This Agreement has been prepared in the English language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. All notices or other correspondence to SkyFex under this Agreement must be sent to the address provided in Section 6 above, or other address as provided by SkyFex for such purpose. Any and all rights and remedies of SkyFex upon User's breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on SkyFex, and the exercise of any one remedy will not preclude the exercise of any other. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement.